Nos.

22-506 and 22-535

In the Supreme Court of the United States

_________
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES,
ET AL.,
Petitioners,
v.
STATE OF NEBRASKA, ET AL.,
Respondents.
________
DEPARTMENT OF EDUCATION, ET AL.,
Petitioners,
v.
MYRA BROWN, ET AL.,
Respondents.
_________
On Writs of Certiorari Before Judgment to the United
States Courts of Appeals for the Eighth and Fifth
Circuits
_________
BRIEF OF HAMILTON LINCOLN LAW
INSTITUTE AND COMMITTEE FOR JUSTICE AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS
_________

CURT A. LEVEY THEODORE H. FRANK

COMMITTEE FOR JUSTICE
3033 Wilson Blvd., Suite 729
Arlington, VA 22201
(202) 270-7748
clevey@committeeforjus-
tice.org
Counsel of Record
HAMILTON LINCOLN LAW
INSTITUTE
1629 K Street NW, Suite 300
Washington, DC 20006
(703) 203-3848
ted.frank@hlli.org
 TABLE OF CONTENTS

Page
Table of Contents ................................................................. i
Table of Authorities ............................................................ ii
Statement of Interest ..........................................................1
Summary of Argument ........................................................2
Argument ..............................................................................3
I. Under the major-questions doctrine, the text
and legislative history of the HEROES Act
demonstrate the unlawfulness of the executive
branch’s reliance on it to enact its Mass Debt
Cancellation. ................................................................3
A. The HEROES Act is targeted to military
personnel. .............................................................3
B. The HEROES Act does not authorize debt
cancellation. .........................................................6
C. Under the major-questions doctrine, the
Mass Debt Cancellation requires clear
congressional authorization. ...............................8
D. The Biden administration’s expansive
reading of the HEROES Act is thinly
reasoned. .............................................................13
Conclusion ...........................................................................15
 TABLE OF AUTHORITIES

Page(s)
Cases
Ala. Ass’n of Realtors v. HHS,
141 S. Ct. 2485 (2021) ........................................................9
Brown v. Cardona,
2022 U.S. Dist. LEXIS 205875
(N.D. Tex. Nov. 10, 2022) ...........................................2, 15
Competitive Enter. Inst. v. FCC,
970 F.3d 372 (D.C. Cir. 2020) ...........................................1
Davis v. Mich. Dep’t of Treasury,
489 U.S. 803 (1989) ............................................................9
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ............................................................9
King v. Burwell,
576 U.S. 473 (2015) ..........................................................10
Mistretta v. United States,
488 U.S. 361 (1989) ..........................................................12
Nat’l Fed’n of Indep. Bus. v. Dept. of Labor, OSHA,
142 S. Ct. 661 (2022) (per curiam) ........................... 10-11
Schwieker v. Chilicky,
487 U.S. 412 (1988) ....................................................11, 12
W. Va. v. EPA,
142 S. Ct. 2587 (2022) .......................... 6, 7, 8, 9, 10, 12, 15
Whitman v. American Trucking Assoc., Inc.,
531 U.S. 457 (2001) ............................................................2
 TABLE OF AUTHORITIES—Continued

Rules and Statutes Page(s)

11 U.S.C. §523(a)(8)..............................................................7
20 U.S.C. §1078-10 ...............................................................8
20 U.S.C. §1078-10(c)(3) ......................................................8
20 U.S.C. §1078-11 ...............................................................8
20 U.S.C. §1087e(d)(1)(D) ....................................................7
20 U.S.C. §1087e(d)(1)(E) ....................................................7
20 U.S.C. §1087e(e)(1)..........................................................8
20 U.S.C. §1087e(h) ..............................................................8
20 U.S.C. §1087ee .................................................................8
20 U.S.C. §1098(d) ................................................................8
20 U.S.C. §1098e ...................................................................7
20 U.S.C. §1098aa(b) ............................................................3
20 U.S.C. §1098aa(b)(5) .......................................................3
20 U.S.C. §1098aa(b)(6) ................................................... 3-4
20 U.S.C. §1098bb(a)(1) ...................................................6, 7
20 U.S.C. §1098bb(a)(2)(A) ..............................................6, 7
20 U.S.C. §1098bb(a)(2)(B) ..................................................6
20 U.S.C. §1098ee .................................................................4
20 U.S.C. §1098ee(2) ............................................................4
20 U.S.C. §1098ee(2)(A) .......................................................4
20 U.S.C. §1098ee(2)(B) .......................................................4
 TABLE OF AUTHORITIES—Continued

Page(s)

20 U.S.C. §1098ee(2)(C) .......................................................4

20 U.S.C. §1098ee(2)(D).......................................................4
S. Ct. R. 37.6 .........................................................................1

Legislative History

147 Cong. Rec. H7155 (Oct. 23, 2001) ...............................12

147 Cong. Rec. S13311 (Dec. 14, 2001) .............................12
149 Cong. Rec. H2522-25 (Apr. 1, 2003).............................5
149 Cong. Rec. H2553-54 (Apr. 1, 2003)...........................12
149 Cong. Rec. S10866 (July 31, 2003) .............................12
153 Cong. Rec. H10790 (Sept. 30, 2007) .............................5
H.R. 2034, 117th Cong. §2 (2021) ........................................7
H.R. 6800, 116th Cong. §150117 (2020) ..............................8
Pub. L. 107-122, 115 Stat. 2386 (Jan. 15, 2002) .................3
Pub. L. 108-76, 117 Stat. 904 (Aug. 18, 2003) ....................3
Pub. L. 109-8 § 220, 119 Stat. 23 (Apr. 20, 2005) ...............7
Pub. L. 109-78, 119 Stat. 2043 (Sept. 30, 2005)..................3
Pub. L. 110-93, 121 Stat. 999 (Sept. 30, 2007)..............3, 12
Pub. L. 116-136, 134 Stat. 281 (Mar. 27, 2020) ..................8
S. 2235, 116th Cong. §101 (2019) .........................................7
 TABLE OF AUTHORITIES—Continued

Other Authorities Page(s)

Camera, Lauren,
Pelosi: Biden Lacks Authority to
Cancel Student Debt,
U.S. NEWS & WORLD REP. (Jul. 28, 2021) ....................13
Lemos, Margaret H.,
The Other Delegate: Judicially Administered
Statutes and the Nondelegation Doctrine,
81 S. CALIF. L. REV. 405 (2008) .....................................11
Lucca, David O., et al.,
Credit Supply and the Rise in College Tuition:
Evidence from the Expansion in Federal Student
Aid Programs, FED. RESERVE BANK OF N.Y.
STAFF REP. #733 (rev. Feb. 2017) ..................................1
Notice of Debt Cancellation Legal Memorandum,
87 Fed. Reg. 52943 (Aug. 30, 2022)................................14
Rubinstein, Reed D.,
Memorandum for Betsy DeVos, Secretary of
Education, re: Student Loan Principal Balance
Cancellation, Compromise, Discharge, and
Forgiveness Authority (Jan. 12, 2021) .................... 12-13
Somin, Ilya,
Federal Court Issues Dubious Decision Dismiss-
ing Six-State Lawsuit Against Biden Loan For-
giveness Program for Lack of Standing, Volokh
Conspiracy blog (Oct. 20, 2022) .......................................1
 TABLE OF AUTHORITIES—Continued

Page(s)

Stratford, Michael & Eugene Daniels,

How Biden Finally Got to ‘Yes’ on Cancelling
Student Debt, POLITICO (Aug. 25, 2022) .......................13
Tabarrok, Alex,
The Student Loan Giveaway is Much Bigger
Than You Think,
Marginal Revolution blog (Aug. 27, 2022) ......................1
Use of the HEROES Act of 2003 to Cancel the
Principal Amounts of Student Loan,
46 O.L.C. __ (Aug. 23, 2022) ...........................................14
 STATEMENT OF INTEREST

Hamilton Lincoln Law Institute (“HLLI”) is a 501(c)(3)

public-interest law firm committed to, among other
things, defending the constitutional separation of powers
and principles of limited government against executive-
branch abuse.1 E.g., Competitive Enter. Inst. v. FCC, 970
F.3d 372 (D.C. Cir. 2020). This case not only presents crit-
ical separation-of-powers issues, but has personal reso-
nance for the many attorneys of HLLI who expect to pay
tuition for children attending college. The government’s
illegal changes to federal student loan policy will create
perverse incentives that will substantially raise tuition for
future students. E.g., David O. Lucca, et al., Credit Supply
and the Rise in College Tuition: Evidence from the Ex-
pansion in Federal Student Aid Programs, FED.
RESERVE BANK OF N.Y. STAFF REP. #733 (rev. Feb.
2017); Alex Tabarrok, The Student Loan Giveaway is
Much Bigger Than You Think, Marginal Revolution blog
(Aug. 27, 2022). Regrettably, because this actuarially cer-
tain expectation of future economic harm is not “immi-
nent,” existing standing doctrine might preclude HLLI
attorneys from bringing suit on behalf of themselves. Mis-
souri, on the other hand, has suffered cognizable injury.

1
Under this Court’s Rule 37.6, amici state that no counsel for a
party authored this brief in whole or in part, and no counsel or party
made a monetary contribution intended to fund the preparation or
submission of this brief. No person other than amici or its counsel
made a monetary contribution to its preparation or submission.
 2

App. 4a-5a; Ilya Somin, Federal Court Issues Dubious De-

cision Dismissing Six-State Lawsuit Against Biden
Loan Forgiveness Program for Lack of Standing, Volokh
Conspiracy blog (Oct. 20, 2022). HLLI supports Mis-
souri’s suit and the plaintiffs’ successful suit in Brown v.
Cardona, 2022 U.S. Dist. LEXIS 205875 (N.D. Tex. Nov.
10, 2022).
The Committee for Justice (CFJ) is a non-profit legal
and policy organization founded in 2002. It is dedicated to
promoting the rule of law and preserving the Constitu-
tion’s limits on federal power and its protection of individ-
ual liberty. Central to this mission is the constitutional
separation of powers, which has allowed our democracy to
endure and which is being threatened by the executive
branch in the instant cases. Consistent with its mission,
CFJ files amicus curiae briefs in key cases, supports con-
stitutionalist nominees to the federal judiciary, and edu-
cates the American public and policymakers about the
benefits of constitutionally limited government and the
proper roles of our federal courts and administrative
agencies.

SUMMARY OF ARGUMENT

This brief seeks to aid the Court by adding important

context through focusing on the legislative text and his-
tory of the HEROES Act, which demonstrate the masto-
don-in-the-mousehole problem here. Cf. Whitman v.
American Trucking Assoc., Inc., 531 U.S. 457, 468 (2001).
 3

ARGUMENT

I. Under the major-questions doctrine, the text and

legislative history of the HEROES Act
demonstrate the unlawfulness of the executive
branch’s reliance on it to enact its Mass Debt
Cancellation.

A. The HEROES Act is targeted to military

personnel.
The HEROES Act was a wartime measure passed in the
wake of the September 11 attacks and again shortly after
the start of the Iraq War. See Pub. L. 107-122, 115 Stat.
2386 (Jan. 15, 2002); Pub. L. 108-76, 117 Stat. 904 (Aug. 18,
2003). At first the Act was to sunset in 2005, but Congress
extended it for two additional years (Pub. L. 109-78, 119
Stat. 2043 (Sept. 30, 2005)), and in 2007, Congress made
the Act permanent with no amendments. Pub. L. 110-93,
121 Stat. 999 (Sept. 30, 2007).
From the acronym title of the bill to the text of the
HEROES Act itself, every aspect of the law is targeted
primarily to military personnel. Section 1098aa(b) sets
forth Congress’s findings justifying the legislation; each
finding speaks exclusively with respect to the armed
forces and the men and women who serve in them. Con-
gress recognized that “The men and women of the United
States military put their lives on hold, leave their families,
jobs, and postsecondary education in order to serve their
country and do so with distinction.” 20 U.S.C.
§1098aa(b)(5). The final finding concludes “There is no
more important cause for this Congress than to support
 4

the members of the United States military and provide as-

sistance with their transition into and out of active duty
and active service.” 20 U.S.C. §1098aa(b)(6).
Other provisions of the HEROES Act similarly are ex-
clusively devoted to members of the armed services. For
instance, §1098cc deals exclusively with “Tuition refunds
or credits for members of armed forces” and the defini-
tions in Section 1098ee relate largely to terms such as
“Military Operation,” “Active Duty,” and “Qualifying Na-
tional Guard Duty.”
The Act defines “affected individual” as
an individual who—
(A) is serving on active duty during a war or
other military operation;
(B) is performing qualifying National Guard
duty during a war or other military operation;
(C) resides or is employed in an area that is de-
clared a disaster area by any Federal, State, or
local official in connection with a national emer-
gency; or
(D) suffered a direct economic hardship as a di-
rect result of a war or other military operation
or national emergency, as determined by the
Secretary.
20 U.S.C. §1098ee(2). Subparts (A) and (B), like the rest of
HEROES Act, exclusively refer to members of the armed
forces.
Subparts (C) and (D) are the only provisions of the
HEROES Act that reach beyond members of the armed
 5

force, but only in limited circumstances. The borrower

must reside or be employed in disaster area that has been
declared in connection with a national emergency, or the
borrower must have suffered an economic hardship as a
direct result of a war, military operation, or national emer-
gency (e.g., spouses of service members called to active
duty or deployed overseas; residents of a city hit by a dis-
ruptive terrorist attack). Subpart D also requires the Sec-
retary to make a determination that borrowers suffered a
direct economic hardship because of the military opera-
tion or national emergency.
Congress’s discussion of the bill showed, consistent with
the text, that representatives thought they were simply
relieving active-duty military from “making student loan
payments … while they are away.” 149 Cong. Rec. at
H2522 (Apr. 1, 2003) (Rep. Garrett). See also id. at H2524
(Rep. Isakson) (the Act ensures that the “loan payments”
of troops who “serve us in the Middle East and in Iraq”
“are deferred until they return” (emphasis added)); id. at
H2524-25 (Rep. Boehner) (“None of us believe that our ac-
tive duty soldiers should … have to make payments on
their student loans while in fact they are not here.”); id. at
H2525 (Rep. Burns) (“The HEROES bill would excuse
military personnel from their Federal student loan obliga-
tions while they are on active duty”). The 2007 discussion
was no different. See 153 Cong. Rec. at H10790 (Sept. 30,
2007) (“This bill is specific in its intent to insure that, as a
result of a war or military contingency operation or na-
tional emergency, our men and women in uniform are pro-
tected.”) (Rep. Kline); id. (“What this bill does is allow the
Secretary of Education to accommodate the unique needs
of our student soldiers.”) (Rep. McKeon).
 6

B. The HEROES Act does not authorize debt

cancellation.
Furthermore, the Act only authorizes the Secretary to
waive or modify any provision relating to student financial
assistance programs “to ensure that recipients of student
financial assistance . . . who are affected individuals are not
placed in a worse position financially in relation to that fi-
nancial assistance because of their status as affected indi-
viduals.” 20 U.S.C. §1098bb(a)(2)(A) (emphasis added).
Any action the Secretary took must fulfill its objective
“without impairing the integrity of the student financial
assistance programs.” 20 U.S.C. §1098bb(a)(2)(B).
And the first decades of use of the HEROES Act re-
flects those limited uncontroversial goals of avoiding
“plac[ing] affected individuals] in a worse position.” 20
U.S.C. §1098bb(a)(2)(A). Despite the September 11 at-
tacks and multiple wars and the devastation of Hurricanes
Katrina and Harvey, the Department of Education never
used the HEROES Act to cancel a single soldier’s—much
less a civilian’s—loan debt. Not one legislator suggested
in the run-up to its passage that the HEROES Act author-
ized the Department to do so.2
Little wonder that the statute permits the Department
only to “waive” or “modify” certain provisions. 20 U.S.C.
§1098bb(a)(1). But these “modest words” cannot bear the
weight the Department now places on them. W. Va. v.

2
That a legislator may do so opportunistically as amicus decades
later carries no weight.
 7

EPA, 142 S. Ct. 2587, 2609 (2022). The Department’s waiv-

ers or modifications can do no more than ensure that bor-
rowers “are not place[d] in a worse position financially in
relation to that financial assistance because of their status
as affected individuals.” 20 U.S.C. §1098bb(a)(2)(A) (em-
phasis added). Canceling debt puts debtors in a better po-
sition, rather than the same position in relation to their
debt as before the “war or other military operation or na-
tional emergency.” 20 U.S.C. §1098bb(a)(1). And as dis-
cussed above, the legislative discussion assumed that the
Secretary would defer, rather than cancel, obligations.
Congress has “conspicuously and repeatedly declined to
enact” explicit legislation seeking to do what the Biden ad-
ministration claims the HEROES Act does here. W. Va.,
142 S. Ct. at 2610; see, e.g., S. 2235, 116th Cong. §101 (2019)
(cancelling up to $50,000 of student loan debt for those
who make under $100,000) (died without vote after being
referred to committee); H.R. 2034, 117th Cong. §2 (2021)
(cancelling the outstanding balance on loans for all bor-
rowers under a certain income cap) (died without vote af-
ter being referred to committee). Moreover, after the
HEROES Act first passed, Congress made it harder, ra-
ther than easier, to cancel student-loan debt—for exam-
ple, making it tougher to discharge federally guaranteed
loans in bankruptcy. 11 U.S.C. §523(a)(8); Pub. L. 109-8 §
220, 119 Stat. 23, 59 (Apr. 20, 2005).
When Congress did want to provide relief for student
debt—including during the COVID crisis—it did so with
specificity and modulation reflecting legislative compro-
mise, rejecting proposals that went only a fraction as far
as the administration is attempting here. See, e.g., 20
 8

U.S.C. §§1087e(d)(1)(D) & (E) and 1098e (income repay-

ment plans); 20 U.S.C. §1087e(e)(1) (income-contingent
repayment plans); 20 U.S.C. §1087e(h) (relief where bor-
rower can demonstrate fraud); compare also CARES Act,
Pub. L. 116-136 §3513, 134 Stat. 281, 404 (Mar. 27, 2020)
(mandating forbearance, but not forgiveness, on swath of
federal student loans) and id. §2206, 134 Stat. at 346-47
(providing tax benefits to employers who pay employee
student loans) with H.R. 6800, 116th Cong. §150117 (2020)
(proposing to cancel up to $10,000 of student loan debt for
economically distressed borrowers) (passed House 208-
199 and died in Senate after July 2020 committee hear-
ings).
And Congress has never tasked the Department of Ed-
ucation with identifying broad classes of borrowers enti-
tled to loan forgiveness. Rather, when Congress wants
the Secretary to cancel debt for a class of borrowers, it ex-
plicitly describes those groups. E.g., 20 U.S.C. §1078-10
(teachers); 20 U.S.C. §1078-10(c)(3) (teachers in mathe-
matics, science, or special education); 20 U.S.C. §1078-11
(service in areas of national need); 20 U.S.C. §1087ee (cer-
tain public service); 20 U.S.C. §1098(d) (disabled veter-
ans). By attempting to do so itself, the Department is
seeking to expand and “transform” its statutorily pre-
scribed role. W. Va., 142 S. Ct. at 2610.
C. Under the major-questions doctrine, the Mass
Debt Cancellation requires clear
congressional authorization.
These facts alone justify applying the major-questions
doctrine because courts “presume that Congress intends
 9

to make major policy decisions itself, not leave those deci-

sions to agencies.” W. Va., 142 S. Ct. at 2613 (cleaned up);
see also Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485,
2490 (2021) (rejecting Biden administration’s attempt to
use COVID to rationalize gigantic unrelated wealth trans-
fer through agency’s rent moratorium).
“It is a fundamental canon of statutory construction that
the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.”
Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989).
“Where the statute at issue is one that confers authority
upon an administrative agency, that inquiry must be
‘shaped, at least in some measure, by’ … whether Con-
gress in fact meant to confer the power the agency has as-
serted.” W. Va., 142 S. Ct. at 2607-08 (quoting FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 159
(2000)). In these “major questions” cases, “the ‘history and
the breadth of the authority that [the agency] has as-
serted,’ and the ‘economic and political significance’ of that
assertion, provide a ‘reason to hesitate before concluding
that Congress’ meant to confer such authority.” Id. at 2608
(quoting Brown & Williamson Tobacco Corp., 529 U.S. at
159-60).
In the instant cases, the breadth of the authority that
the Department has asserted through its interpretation of
the HEROES Act is “breathtaking.” Ala. Ass’n of Real-
tors, 141 S. Ct. at 2489. The Secretary claims the power to
cancel student debt of any kind and amount for any bor-
rower. The economic and political significance of canceling
hundreds of billions of dollars in student debt is equally
breathtaking. See id. (applying the major-questions doc-
trine for a smaller economic effect). In both its breadth
 10

and economic impact, the administration’s asserted au-

thority to cancel debt is precisely the sort of major ques-
tion that the legislative branch presumably reserves for
itself.
Nonetheless, the government claims (Pet. Br. 49 (quot-
ing W. Va., 142 S. Ct. at 2608)) that the major-questions
doctrine does not apply to the provision of government
benefits. However, contrary to the administration’s asser-
tion, this Court made no distinction and used the same
reasoning when applying the doctrine to a federal benefits
program, the Affordable Care Act. King v. Burwell, 576
U.S. 473, 485–86 (2015). As the Court explained,
In extraordinary cases, however, there may be rea-
son to hesitate before concluding that Congress has
intended … an implicit delegation. This is one of
those cases. The tax credits are among the Act's
key reforms, involving billions of dollars in spend-
ing each year and affecting the price of health in-
surance for millions of people. Whether those
credits are available on Federal Exchanges is thus
a question of deep economic and political signifi-
cance that is central to this statutory scheme; had
Congress wished to assign that question to an
agency, it surely would have done so expressly.
King, 576 U.S. at 485–86 (cleaned up).
The Cancellation, like the Affordable Care Act, provides
the same reason to hesitate when interpreting a statute as
in cases not involving government benefits. What matters
is whether the executive branch is exercising authority
that Congress must clearly delegate.
 11

Consider also that “the major questions doctrine is

closely related to what is sometimes called the nondelega-
tion doctrine. … Both are designed to protect the separa-
tion of powers and ensure that any new laws governing the
lives of Americans are subject to the robust democratic
process the Constitution demands.” Nat’l Fed’n of Indep.
Bus. v. Dept. of Labor, OSHA, 142 S. Ct. 661, 668-69 (2022)
(per curiam) (Gorsuch, J., concurring). In Schweiker v.
Chilicky, 487 U.S. 412 (1988), the Court applied the prin-
ciples of nondelegation when it addressed the provision of
government benefits, specifically the question of
“[w]hether a Bivens remedy should be implied for alleged
due process violations in the denial of social security disa-
bility benefits.” Id. at 420. Though Chilicky dealt with del-
egation to the judicial branch rather than the executive
branch, principles of nondelegation apply equally. Marga-
ret H. Lemos, The Other Delegate: Judicially Adminis-
tered Statutes and the Nondelegation Doctrine, 81 S.
CALIF. L. REV. 405, 436 (2008).
Like the catalog of legislation providing limited forms of
student debt relief, both pre- and post-pandemic (see su-
pra), so too had Congress acted several times to alleviate
the harm caused by the unwarranted denial of disability
benefits: “Congressional attention [had] been frequent
and intense.” Chilicky, 487 U.S. at 425. But “[a]t no point
did Congress choose to extend to any person the kind of
remedies” sought by the plaintiffs. Id. at 426. Chilicky
concluded that “Congress is the body charged with mak-
ing the inevitable compromises required in the design of a
massive and complex welfare benefits program.” Id. at
 12

429. In short, the Court applied the principles of nondele-

gation to a government benefit program, again putting the
lie to the government’s argument here.
Chilicky reinforces the notion that the HEROES Act
does not confer upon the Secretary the expansive author-
ity to implement blanket student loan debt cancelation.
This reading falls squarely within the Court’s precedents
applying the nondelegation doctrine to “giv[e] narrow con-
structions to statutory delegations that might otherwise
be thought to be unconstitutional” because of separation
of powers concerns. Mistretta v. United States, 488 U.S.
361, 373 n.7 (1989).
Because the major-questions doctrine applies to the in-
stant cases, the Department needed “clear congressional
authorization” for the Cancellation. W. Va., 142 S. Ct. at
2609. It is unimaginable that Congress gave the executive
branch that authority in uncontroversial bills passed by
voice vote.3 Thus, the Department’s memo, authored by
Reed Rubenstein, correctly concluded that the HEROES
Act was never intended to provide the Secretary broad
discretion to execute a mass cancellation of federal stu-
dent debt. Reed Rubenstein, Memorandum for Betsy

3
The 2001 HEROES Act passed by unanimous voice vote weeks
after 9/11. 147 Cong. Rec. H7155 (Oct. 23, 2001); 147 Cong. Rec.
S13311 (Dec. 14, 2001). The 2003 Act passed the House 421-1 via a
suspension of the rules, and the Senate passed it by unanimous con-
sent. 149 Cong. Rec. S10866 (July 31, 2003); 149 Cong. Rec. H2553-54
(Apr. 1, 2003). The 2007 Act that made the HEROES Act permanent
was a three-paragraph bill that Congress passed by voice vote. Pub.
L. 110-93, 121 Stat. 999.
 13

DeVos, Secretary of Education, re: Student Loan Princi-

pal Balance Cancellation, Compromise, Discharge, and
Forgiveness Authority 6 (Jan. 12, 2021) (available at
https://tinyurl.com/a4n326cw). The HEROES Act does
not provide the Secretary the statutory authority to per-
form a “blanket or mass cancellation, compromise, dis-
charge, or forgiveness of student loan principal balances,
and/or to materially modify the repayment amounts or
terms thereof, whether due to the Covid-19 pandemic or
for any other reason.” Id. at 8.
As Speaker Nancy Pelosi stated,
People think that the president of the United
States has the power for debt forgiveness … He
does not. He can postpone, he can delay, but he
does not have that power. That has to be [accom-
plished through] an act of Congress.
Lauren Camera, Pelosi: Biden Lacks Authority to Cancel
Student Debt, U.S. NEWS & WORLD REP. (Jul. 28, 2021).
See also Stratford & Daniels, How Biden Finally Got to
“Yes” on Canceling Student Debt, Politico (Aug. 25, 2022)
(“Biden entered the presidency deeply skeptical of the
idea” that “he had the authority” to unilaterally forgive
“large chunks of student loan debt.”).
D. The Biden administration’s expansive reading
of the HEROES Act is thinly reasoned.
The Biden Administration’s retreat from Speaker
Pelosi’s clear summary of presidential power regarding
student loans is thinly reasoned. The administrative rec-
ord is limited to a 13-page memorandum marked “Confi-
dential” prepared by Undersecretary of Education James
Kvaal dated August 24, 2022 (Kvaal Memo), the same day
 14

President Biden and the Department announced the Can-

cellation through government websites and press brief-
ings. J.A. 117–31, 195–207.
The Kvaal Memo references internal Department of
Education analysis and outside sources as evidence of the
negative impact of the pandemic on student loan borrow-
ers as well as the justifications for the income thresholds
and amounts of relief granted. Accompanying the Kvaal
Memo was a memorandum from Richard Cordray, the De-
partment’s Chief Operating Officer for Federal Student
Aid, to Secretary Cardona authorizing the program
(“Cordray Memo”). The Cordray Memo is also dated Au-
gust 24, 2022 and was signed by Secretary Cardona at 9:25
a.m. that same day. This thin “administrative record” only
surfaced after the filing of litigation challenging the loan
forgiveness plan. See ECF No. 27-1 (Exh. A), Nebraska v.
Biden, No. 22-cv-01040 (E.D. Mo. Oct. 7, 2022); ECF
No. 24-1 (Exh. A), Brown v. U.S. Dept. of Educ., No. 22-
cv-00908 (N.D. Tex. Oct. 19, 2022).
The Kvaal and Cordray Memos are dated one day after
two legal memorandums that assert that the HEROES
Act does in fact grant the Secretary the authority to per-
form mass student debt cancellation. See Notice of Debt
Cancellation Legal Memorandum, 87 Fed. Reg. 52943,
52944 (Aug. 30, 2022) (originally dated Aug. 23, 2022); Use
of the HEROES Act of 2003 to Cancel the Principal
Amounts of Student Loan, 46 O.L.C. __ (Aug. 23, 2022).
Of course, the Cancellation did not simply come to frui-
tion within 48 hours in August 2022. Rather, it was the cul-
mination of months of behind-the-scenes legal
 15

maneuvering and political lobbying that followed Con-

gress’s refusal to enact President Biden’s request for for-
giveness of student debt. The President’s push for debt
cancellation, dating back to his 2020 campaign, was moti-
vated less by the COVID pandemic and more by concerns
that the cost of college has “nearly tripled” in forty years,
that the resulting debt imposes a “lifelong burden,” and
the like. J.A. 117–18. See 46 O.L.C. Slip Op. at 11-12, n.2
(noting that the Education Department requested OLC
examine broad-based debt relief on August 16, 2021);
Stratford & Daniels, supra. Faced with Congressional op-
position, the President ultimately bypassed the legislative
process in order to fulfill his campaign promise before a
challenging midterm election cycle, knowing that he could
blame the courts if his loan forgiveness program were
struck down.
But despite the best efforts of the President and the ad-
ministration’s last-minute memos, “‘enabling legislation’
like the HEROES Act is not an ‘open book to which the
agency may add pages and change the plot line.’” Brown
v. Cardona, 2022 U.S. Dist. LEXIS 205875, *31-*32 (N.D.
Tex. Nov. 10, 2022) (quoting W. Va., 142 S. Ct. at 2609).

CONCLUSION

The Biden administration’s reliance on the HEROES

Act is contrary to the text and intent of the statute. The
Mass Debt Cancellation is therefore ultra vires and this
Court should declare it unlawful.
 16

Respectfully submitted,

Theodore H. Frank
Counsel of Record
HAMILTON LINCOLN
LAW INSTITUTE
1629 K Street N.W., Suite 300
Washington, D.C. 20006
(703) 203-3848
ted.frank@hlli.org

Curt A. Levey
COMMITTEE FOR JUSTICE
3033 Wilson Blvd., Suite 729
Arlington, VA 22201
(202) 270-7748
clevey@committeeforjustice.org
February 3, 2023